Final Rule:

Confidentiality Determinations for 

Part 98 Data and 

Amendments to Special Rules 

Governing Certain Information 

Obtained Under the Clean Air Act

Inter-Agency Briefing

January 26, 2010
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Overview

• Background on GHG Reporting Program

• Previous CBI actions

– Review of the July 2010 Proposals

– Review of December 2010 Actions

•“Inputs to Emission Equations” data category

• Comments and this CBI Final Rule

– Final action on the remaining 21 data categories
Background on Reporting 

Program

• Greenhouse Gas Reporting Program (GHGRP) requires reporting by:

– Facilities that directly emit GHGs from industrial processes and 

stationary fuel combustion; and

– Upstream suppliers of fuels and industrial GHGs.

• First reports are due under the program on March 31, 2011.

• EPA typically makes CBI determinations under the Clean Air Act (CAA) 

on a case by case basis. 

• Timely release of non-CBI data not possible with a case-by-case approach 

due to the large numbers of entities expected to report (over 10,000) and 

the large number of data elements reported (over 1,500).

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PREVIOUS CBI ACTIONS

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Review of July 2010 CBI Proposals (1)

In order to support a less burdensome, streamlined 

process and timely release of GHG data: 

• Issued proposals in July 2010:

– On July 7, 2010, EPA proposed: 

• Confidentiality determinations for all data elements 

reported under GHGRP; and

• Regulations for handling of GHGRP data based on the 

confidentiality determinations proposed in this notice (e.g., 

eliminating notifications to individual facilities prior to 

release of data). 

– On July 27, 2010, EPA issued a supplemental notice to 

address new/revised data elements added to the GHGRP.

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Review of July 2010 Proposals (2)

• EPA categorized all data elements into 22 categories:

– 11 categories for direct emitters.

– 11 categories for suppliers.

• Except for three supplier categories, CBI determinations 

made on a category basis.

– Similar characteristics

– Consistent treatment of data across all reporters

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Review of July 2010 Proposals (3) 

Each of the 22 data category was given one of the following determinations:

1. Meets definition of “emissions data” and therefore shall be available to the 

public under the Clean Air Act (CAA)

– The CAA precludes “emission data” from being considered 

confidential and requires that such data be available to the public

– CBI determination not-necessary

2. Data elements are not emission data; they are also not CBI because :

– Disclosure is not likely to cause substantial harm to business’s 

competitive position (40 CFR 2.208)

3. Data elements are not emission data; they are CBI because :

— Disclosure is likely to cause substantial harm to business’s 

competitive position (40 CFR 2.208)

— Entitled to confidential treatment unless subsequently determined to 

be emission data or otherwise not qualified as CBI

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Review of December 2010 CBI 

Actions

Based on comments to the July 2010 proposals, EPA issued actions in 

December 2010 to address immediate concerns: 

• Under the Clean Air Act and EPA regulations “inputs to emission equations” 

cannot be treated as confidential.

– Represents ~300 of the ~1500 data elements to be reported this year (2010 data)

– Received several comments raising concerns regarding this determination.

• To gather more information and allow more time to consider issues raised by 

commenters, EPA took the following actions on December 27, 2010: 

1. Interim Final Regulation Deferring the Reporting Date for Certain Data Elements 

Required Under the Mandatory Reporting of Greenhouse Gases Rule. 

2. Proposed rule: Change to the Reporting Date for Certain Data Elements Required 

Under the Mandatory Reporting of Greenhouse Gases Rule.

3. Call for Information on Inputs to Emission Equations Under the Mandatory 

Reporting on Greenhouse Gases Rule.

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Comments and Final Rule

Final determinations for all data 

except “inputs to equations”

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Part 98 Reporting Elements

Static & Operating 

Characteristics

308 data elements

19%

(this action)

Other Verification 

Data

430 data elements

27%

(this action)

Emission 

Data

169 data 

elements

10%

(this action)

Inputs to Emission 

Equations 

308 data elements 

19%

(Not in this Action)

Suppliers

396 data elements

25%

(this action)

Direct Emitters

1,072 data elements

75%

Green = Suppliers

Blue = Direct Emitters
General Comments

Approach

• Some commenters supported categorical approach

• Some commenters preferred case-by-case approach 

Response: Categorical approach provides for timely release of data

– Where commenters raised issues or concerns for data elements that could not be 

addressed through the categorical approach, EPA evaluated the data elements 

individually.

Sectors Reporting in 2012

• Some commenters suggested EPA allow comment on new and revised data 

elements for subparts reporting in 2012

• Approximately 300 new data elements added to these subparts

Response: EPA plans to issue a re-proposal that will address these new data 

elements and allow for additional public comments

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Direct Emitter Data Categories 

Static & Operating Characteristics 

• These two categories includes data on facility characteristics such as production 

capacity, operating hours, number/description of units

• EPA proposed that these two categories of data to be non-CBI

• Some commenters stated all data in these category should be CBI

• Some commenters stated that specific data elements should be CBI

Response: EPA re-evaluated data elements and determined the categorical nonCBI determination is not appropriate; EPA made CBI determinations on a data 

element basis

Other comments

• A few comments on specific data elements

Response: EPA evaluated these individual comments and resolved

Final determination for the direct emitter data categories are summarized in Appendix C 
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Supplier Data Categories

General Comments

• All supplier data should be CBI

• All supplier data is “emission data” and therefore must be publicly 

available

Response: Suppliers are not the actual source of the emissions so data does 

not qualify as “emission data”; under FOIA, data must be available if it 

is not CBI

Other comments

• A few comments on specific data elements

Response: EPA evaluated these individual comments and resolved

Final determination for the supplier data categories are summarized in Appendix D 
Next Steps

• Finalize this action with ~1200 of the 2010 GHG 

data elements

• Re-propose the determinations for data reported 

in 2012

• Address“inputs to equations” data

– Take final action on deferral

– Evaluate comments to CFI and determine next steps

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Questions?
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Appendix A: CAA section 114(c)

Availability of records, reports, and information to public; 

disclosure of trade secrets 

Any records, reports or information obtained under subsection (a) of 

this section shall be available to the public, except that upon a 

showing satisfactory to the Administrator by any person that records, 

reports, or information, or particular part thereof, (other than 

emission data) to which the Administrator has access under this 

section if made public, would divulge methods or processes entitled to 

protection as trade secrets of such person, the Administrator shall 

consider such record, report, or information or particular portion 

thereof confidential in accordance with the purposes of section 1905

of title 18, except that such record, report, or information may be 

disclosed to other officers, employees, or authorized representatives 

of the United States concerned with carrying out this chapter or when 

relevant in any proceeding under this chapter.
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Appendix B: Definition of 

Emission Data

40CFR 2.301(a)(2)(i):

(A) Information necessary to determine the identity, amount, 

frequency, concentration, or other characteristics (to the extent 

related to air quality) of any emission which has been emitted by the 

source (or of any pollutant resulting from any emission by the source), 

or any combination of the foregoing;

(B) Information necessary to determine the identity, amount, 

frequency, concentration, or other characteristics (to the extent 

related to air quality) of the emissions which, under an applicable 

standard or limitation, the source was authorized to emit (including, to 

the extent necessary for such purposes, a description of the manner or 

rate of operation of the source); and

(C) A general description of the location and/or nature of the 

source to the extent necessary to identify the source and to distinguish 

it from other sources (including, to the extent necessary for such 

purposes, a description of the device, installation, or operation 

constituting the source).
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Appendix C: Final Direct Emitter 

Determinations

Meets definition of 

“emission data”

(Available to public)

Not “emission data” , 

Not CBI

(Available to public)

Not “emission data”, 

CBI

(Not available to public 4)

• Facility & Unit Identifier 

Information

• Emissions

• Calculation Methodology & 

Methodological Tier

• Data Elements Reported for 

Periods of Missing Data

• Test and Calibration Methods • Production/Throughput Data 

That are Not Inputs to 

Equations

• Raw Materials Consumed That 

are Not Inputs to Equations

• Process-specific and Vendor 

Data Submitted in BAMM 

Extension Requests

• Unit/process “Static” Characteristics That are Not Inputs to 

Equations

• Unit/process “Operating” Characteristics That are Not Inputs to 

Equations

4Data will be released in aggregated format, as appropriate.
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Appendix D: Final Supplier 

Determinations

Meets definition of 

“emission data”

(Available to public)

Not “emission data”, 

Not CBI

(Available to public)

Not “emission Data”, CBI

(Not available to public5)

None • Calculation, Test, and 

Calibration Methods

• Identification Information

• Data elements Reported for 

Periods of Missing Data Not 

Related to 

Production/Throughput or 

Materials Received

• Emission factors

• Supplier Customer & Vendor information

• Amount & Composition of Materials 

Received

• Data Elements Reported for Periods of 

Missing Data That are related to 

Production/Throughput or Materials 

Received

• Process-Specific and Vendor Data Submitted 

in BAMM Extension Request

• GHGs reported6

• Production/Throughput Quantities & Composition6

• Unit/Process Operating Characteristics6

5 Data will be released in aggregated format, as appropriate.

6 Some data elements within this category are proposed as CBI and some are not. Decisions are subpart-specific, based on 

nature of industry.